Kinder v. Commissioner of Social Security

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, GRANTING
UNOPPOSED MOTION TO REMAND AND DENYING AS MOOT
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

I.
Procedural History

The
plaintiff, Emma Jean Kinder, by counsel, filed a complaint in
this Court to obtain judicial review of the defendant's
final decision pursuant to 42 U.S.C. § 405(g) of the
Social Security Act. The defendant, by counsel, filed an
answer to the complaint, and the plaintiff filed a motion for
summary judgment. The defendant then filed an unopposed
motion to remand the civil action to the Commissioner of
Social Security pursuant to the fourth sentence of 42 U.S.C.
§ 405(g). The unopposed motion to remand represents
that, upon further review, the Appeals Counsel has determined
that further evaluation of the plaintiff's claim is
warranted.

The
unopposed motion to remand states that, upon remand, the
Commissioner of Social Security, through the Appeals Council,
will refer the plaintiff's claim to an Administrative Law
Judge. The Administrative Law Judge will then (1) further
clarify whether the plaintiff has a limited or marginal
education and ensure that the educational requirements in the
mental residual functional capacity findings are consistent
with that determination; (2) if the plaintiff is determined
to have a marginal education, apply the appropriate rule in
the Medical-Vocational Guidelines to determine whether she
would be considered disabled at age 60 when closely
approaching retirement age; and (3) take further action to
complete the administrative record resolving the above issues
and issue a new decision.

United
States Magistrate Judge Michael John Aloi then entered a
report and recommendation in which he recommends that the
unopposed motion to remand be granted and that the case be
remanded to the Commissioner of Social Security pursuant to
the fourth sentence of 42 U.S.C. § 405(g). Neither party
filed objections to the report and recommendation. For the
following reasons, this Court affirms and adopts the
magistrate judge's report and recommendation.

II.
Applicable Law

Pursuant
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
As to those portions of a recommendation to which no
objection is made, a magistrate judge's findings and
recommendation will be upheld unless they are clearly
erroneous. Because neither party filed objections, this Court
will review the magistrate judge's findings and
recommendations under the clearly erroneous standard.

III.
Discussion

“A
district court may remand a final decision of the Secretary
only as provided in sentences four and six of 42 U.S.C.
§ 405(g).” Melkonyan v. Sullivan, 501
U.S. 89, 90 (1991). Sentence four of 42 U.S.C. § 405(g)
gives the courts the “power to enter, upon the
pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a
rehearing.” Sentence six of 42 U.S.C. § 405(g)
authorizes the court to remand in two scenarios: (1)
“on motion of the Commissioner of Social Security made
for good cause shown before the Commissioner files the
Commissioner's answer, ” or (2) upon a
plaintiff's “showing that there is new evidence
which is material and that there is good cause for the
failure to incorporate such evidence into the record in a
prior proceeding.” While a district court does not
enter a final judgment when remanding under sentence six, a
final judgment is required when remanding under sentence
four. See Shalala v. Schaefer, 509 U.S. 292, 297-98
(1993).

This
Court finds no clear error in the magistrate judge's
conclusion that remand under sentence four of 42 U.S.C.
§ 405(g) is most appropriate in this case. The unopposed
motion to remand does not assert or address good cause and
the Commissioner of Social Security has already filed its
answer. Thus, sentence six is inapplicable. Accordingly, this
Court agrees with the magistrate judge that the civil action
should be remanded to the Commissioner of Social Security
under sentence four of 42 U.S.C. § 405(g).

IV.
Conclusion

For the
reasons above, the magistrate judge's report and
recommendation (ECF No. 11) is hereby AFFIRMED and ADOPTED.
Thus, the plaintiff's motion for summary judgment (ECF
No. 9) is DENIED AS MOOT and the defendant's unopposed
motion to remand (ECF No. 10) is GRANTED. Accordingly, this
civil action is REMANDED to the Commissioner of Social
Security for further proceedings consistent with the
defendant's unopposed motion to remand. It is ORDERED
that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.

Finally,
this Court finds that the parties were properly advised by
the magistrate judge that failure to timely object to the
report and recommendation in this action would result in a
waiver of appellate rights. Because the parties have failed
to object, they have waived their right to seek appellate
...

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